Citation Nr: 1308884
Decision Date: 03/15/13 Archive Date: 03/25/13
DOCKET NO. 95-37 666 ) DATE
)
On appeal from the
Department of Veterans Affairs Regional Office
in San Juan, the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for a circulatory disability, to include as being secondary to chemical dioxin exposure.
2. Entitlement to service connection for posttraumatic stress disorder (PTSD).
3. Entitlement to service connection for a skin disorder, to include as being secondary to chemical dioxin exposure.
4. Entitlement to service connection for migraine headaches, to include as being secondary to chemical dioxin exposure.
5. Entitlement to service connection for an acquired psychiatric condition, not to include PTSD, manifested by memory loss, personality disorder, and temper trouble, to include as being secondary to chemical dioxin exposure.
6. Entitlement to service connection for an eye disorder, to include as being secondary to chemical dioxin exposure.
7. Entitlement to service connection for hepatitis and the residuals thereof, to include as being secondary to chemical dioxin exposure.
8. Entitlement to service connection for a sinus disability, to include as being secondary to chemical dioxin exposure.
9. Entitlement to service connection for hepatocellular carcinoma (cancer of the liver) and the residuals thereof, to include as secondary to chemical dioxin exposure.
REPRESENTATION
Appellant represented by: Sean Kendall, Attorney at Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The appellant served on active duty from December 1968 to November 1971. This service included service in the Republic of South Vietnam from July 9, 1969, to July 8, 1970.
This matter comes before the Board of Veterans' Appeals, hereinafter the Board, from three rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), located in San Juan, the Commonwealth of Puerto Rico. A September 1994 rating decision denied the appellant's claims for entitlement to service connection for: a circulatory disability, a skin condition; migraine headaches; an acquired psychiatric condition manifested by memory loss, personality disorder, and temper trouble; an eye disorder; hepatitis; and a sinus condition, all to include as being secondary to herbicide exposure. The second rating action was issued in August 2002 and this action denied the appellant's claim for entitlement to service connection for PTSD. The final rating action by the RO was issued in October 2007 rating decision and it denied the appellant's claim of entitlement to service connection for hepatocellular carcinoma.
With respect to the issues of service connection for a skin condition, migraines, an acquired psychiatric disorder, an eye disability, hepatitis, and a sinus disability, all six issues were initially remanded by the Board to the RO. The purpose of the remand was to obtain additional medical documents that were not contained in the record. The claim was subsequently returned to the Board for review.
In June 2004, the Board issued a Decision/Remand. In that action, the Board denied the appellant's claim for service connection for PTSD. The remaining issues, those of entitlement to service connection for a skin condition; migraine headaches; an acquired psychiatric condition manifested by memory loss, personality disorder and temper trouble; an eye disorder; hepatitis; and a sinus condition, all to include as secondary to herbicide exposure, were remanded to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development.
After the appellant received notification of the Board's denial of his claim involving service connection for PTSD, the appellant appealed to the United States Court of Appeals for Veterans Claims (Court). Upon review, the Court issued an Order in July 2006. In that action, the Court granted a Joint Motion for Remand of the claim of entitlement to service connection for PTSD and vacated the Board's June 2004 Decision. This matter was remanded to the Board for readjudication in accordance with the Joint Motion for Remand. In June 2007, the Board subsequently remanded the issue of entitlement to service connection for PTSD to the RO for additional development.
All of the issues that had been remanded to the RO in the June 2004 Board Decision/Remand and the June 2007 Board Remand were merged back together and returned to the Board for review. In March 2010, upon reviewing the evidence obtained as a result of the two remands, the Board concluded that it still did not have all of the information needed to adjudicate the issues on appeal. Hence, the claim was once again remanded to the RO for development. The claim has since been returned to the Board for review.
A review of the claims folders reveals that In February 1998, the appellant proffered testimony before a Veterans Law Judge (VLJ) who conducted the hearing at the RO in San Juan. That particular VLJ subsequently retired from service in the federal government and the appellant was notified of that fact. As a result, the appellant was given the opportunity to provide testimony before the undersigned VLJ. Said hearing occurred via a videoconference hearing in June 2009. Transcripts of both hearings were prepared and have been included in the claims folder for review.
FINDINGS OF FACT
1. The Veteran in this case served on active duty from December 1968 to November 1971, including service in the Republic of South Vietnam.
2. The Board has been notified via the Social Security Administration that the appellant died in February 2013.
CONCLUSION OF LAW
Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this claim at this time. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Unfortunately, the appellant died during the pendency of the appeal. As a matter of law, appellants' claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). This appeal on the merits has become moot by virtue of the death of the appellant and must be dismissed for lack of jurisdiction. See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012).
In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the veteran. 38 C.F.R. § 20.1106 (2012).
The Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion. Such request must be filed not later than one year after the date of the appellant's death. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008). As provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ...." The Secretary will be issuing regulations governing the rules and procedures for substitution upon death. Until such regulations are issued, an eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA regional office (RO) from which the claim originated (listed on the first page of this decision).
ORDER
The appeal is dismissed.
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs